Children Bill Update


By Norman Wells, Director.








Norman Wells is the Director of Family and Youth Concern (FYC). This article was previously published in the FYC Family Bulletin, No. 116, summer 2004

It is reproduced her with the kind consent of the author.







The Children Bill completed its passage through the House of Lords on 15 July and now passes to the House of Commons, where it will be debated after the summer recess. We remain concerned about the three issues highlighted in Bulletin 115.


(a) Parental Discipline

Following a three-hour debate on 5 July, peers voted by a margin of 250 to 75 against an amendment which would have made all parental smacking a criminal offence.


However, they supported by 226 votes to 91 an amendment moved by Lord Lester which would limit the defence of reasonable chastisement to charges of common assault. When the government previously considered pursuing this option in a public consultation in 2000, it concluded that: ‘Although it seems attractive to limit the defence to the lesser charge, the legal responses strongly suggest that restricting the availability of the reasonable chastisement defence to common assault could result in overcharging in order to avoid the defence.’1


The Crown Prosecution Service (CPS) held that it would be ‘wrong’ to limit the defence to charges of common assault since there was ‘an overlap between common assault and assault occasioning actual bodily harm. For example, a very minor bruise could, as a matter of law, be charged as actual bodily harm.’ The CPS also stated that such a change in the law was ‘unnecessary because whether the defence will succeed will be dependent on the circumstances, including the injuries inflicted’.2


The Association of Chief Police Officers pointed out that in the majority of cases involving children, assault occasioning actual bodily harm was the preferred charge as it allowed the child to give evidence by video in court. Restricting the defence of reasonable chastisement to those charged with common assault could therefore have the effect of denying the defence to the majority of parents charged with assault on a child.3


These concerns were shared by Judge D Elgan Edwards who, as Chairman of the Criminal Sub-Committee of the Council of HM Circuit Judges submitted: ‘Sometimes the distinction between common assault and ABH is a fine one and if the defence was restricted to the former might lead to overcharging, i.e. charging the more serious offence to seek to remove the reasonable chastisement defence.’4


During the course of the recent House of Lords debate, the Attorney-General, Lord Goldsmith, announced that the Director of Public Prosecutions (DPP) intended to amend the CPS charging standards in such a way that ‘even minor assaults by a parent on a child’ would ‘normally be charged as assault occasioning actual bodily harm’, even where the level of injuries would usually lead to a charge of common assault. This was justified on the basis that an ‘assault’ on a child by an adult was to be regarded as a ‘serious aggravating feature’.5


Until we receive further details of the DPP’s plans, it is difficult to see how Lord Lester’s amendment ‘clarifies the law’ as claimed by government ministers. In view of the statements from legal authorities referred to above, it is also difficult to derive comfort from ministerial assurances that ‘the Lords decision will not criminalise ordinary decent parents for smacking their children in a way that does not harm them’.6


(b) Children’s Commissioner

Following a government defeat at committee stage, the children’s commissioner will have a rights-based function, with scope to conduct an investigation into the case of an individual child. The amendment, supported by Barnardo’s, the Children’s Rights Alliance for England, the Children’s Society, the NSPCC, Save the Children and Unicef, also empowers the commissioner to provide assistance to a child in bringing legal proceedings.


(c) Information Databases

The government has amended the Bill to stipulate that the information to be held on the electronic database covering all children is to include ‘name, address, date of birth, person with parental responsibility, unique identifying number, educational setting and GP practice details’. Case records would not be included. However, it remains open-ended with considerable discretion granted to the Secretary of State. Government minister, Baroness Ashton explained, ‘we want to retain the power in regulation to add information that may be required in the future’.


The government has also said that it wishes to retain flexibility as to whether databases are established on a national, regional or local basis. It will be embarking on a public consultation in the autumn to help inform its regulations and guidance on matters such how practitioners should indicate the existence of a concern on the database and the extent to which confidentiality should be preserved where young people are accessing ‘sensitive services’ (e.g. family planning and abortion clinics).




1. Department of Health (2001), Analysis of Responses to the Protecting Children, Supporting Parents Consultation Document.

2. Crown Prosecution Service response to Protecting Children, Supporting Parents

3. Department of Health (2001), op cit

4. ibid

5. HL Deb (2003-04) 663, col. 563.

6. Correspondence with Baroness Ashton of Upholland, Parliamentary Under Secretary of State, 12 July 2004.



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